Disability-Claim Judge Has Trouble Saying 'No'

Near-Perfect Approval Record; Social-Security Program Strained

By

Damian Paletta

May 19, 2011

HUNTINGTON, W.Va.—Americans seeking Social Security disability benefits will often appeal to one of 1,500 judges who help administer the program, where the odds of winning are slightly better than even. Unless, that is, they come in front of David B. Daugherty.

ENLARGE

Judge David B. Daugherty
The Herald-Dispatch

In the fiscal year that ended in September, the administrative law judge, who sits in the impoverished intersection of West Virginia, Kentucky and Ohio, decided 1,284 cases and awarded benefits in all but four. For the first six months of fiscal 2011, Mr. Daugherty approved payments in every one of his 729 decisions, according to the Social Security Administration.

The judge has maintained his near-perfect record despite years of complaints from other judges and staff members. They say he awards benefits too generously and takes cases from other judges without their permission.

Staffers in the Huntington office say he hears a disproportionate number of cases filed by one area attorney. Mr. Daugherty has been known to hold hearings for as many as 20 of this lawyer's clients spaced 15 minutes apart.

Mr. Daugherty is a standout in a judicial system that has lost its way, say numerous current and former judges. Judges say their jobs can be arduous, protecting the sometimes divergent interests of the applicant and the taxpayer. Critics blame the Social Security Administration, which oversees the disability program, charging that it is more interested in clearing a giant backlog than ensuring deserving candidates get benefits. Under pressure to meet monthly goals, some judges decide cases without a hearing. Some rely on medical testimony provided by the claimant's attorney.

This breakdown is one reason why Social Security Disability Insurance—one of the federal government's two disability programs—is under severe financial strain. It paid a record $124 billion in benefits in 2010 and is on track to become the first major entitlement program to go bust. Government officials said last week it is expected to run out of money in 2018.

Social Security Disability Awards

The U.S. program's tribulations come as other countries are trying to limit the costs of their disability programs. In the U.K., officials have proposed requiring routine re-evaluations of people with disabilities to see if their conditions have changed. Australia has proposed that some beneficiaries participate in job-training programs, with the goal of eventually moving them off government support.

American applicants for disability benefits must first seek approval from state officials, who play a lead role in an initial review. Applicants twice denied can then appeal to one of the Social Security Administration's administrative law judges. The judges are appointed by the federal agency after a competitive exam and screening process.

Hearings, which aren't open to the public because of medical-privacy rules, typically last an hour and include either the judge or the applicant's attorney questioning the petitioner. Medical or employment experts can testify, too. Judges consider an applicant's health, age, education and job prospects before making a legally binding decision.

The average disability-benefit approval rate among all administrative judges is about 60% of cases. But there are Daugherty equivalents dotted across the country. In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.

Mr. Daugherty, 75 years old, processes more cases than all but three judges in the U.S. He has a wry view of his less-generous peers. "Some of these judges act like it's their own damn money we're giving away," Mr. Daugherty told a fellow Huntington judge, Algernon Tinsley, who worked in the same office until last year, Mr. Tinsley recalled.

ENLARGE

Judges and local attorneys have complained about the volume of disability cases brought before Judge Daugherty by one lawyer, Eric C. Conn.
Damian Paletta

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Mr. Daugherty, in a written response to questions about the comment, said such a phrase is "more or less a standing joke" among disability-benefit review offices around the country. "No more, no less."

He said every decision he makes "is fully supported by relevant medical reports and physical and/or mental residual functionary capacity assessments from treating or examining doctors or other medical professionals."

When asked about Mr. Daugherty, Social Security Administration Commissioner Michael Astrue said in an interview there were several "outliers" among administrative law judges, but that he has no power to intervene because their independence is protected by federal law. Their appointments are lifetime.

"We mostly have a very productive judiciary that makes high-quality decisions, and we've got some outliers and we've done what we can," said Mr. Astrue. "Our hands are tied on some of the more extreme cases."

Social Security Administration officials acknowledge they are trying to clear a backlog of 730,000 cases. But they say they remain focused on ensuring taxpayer money isn't wasted. "We have an obligation to the people in need to provide them their benefits if they qualify, but we also have an obligation to the taxpayer not to give benefits to people who don't qualify," Mr. Astrue said.

Following inquiries from The Wall Street Journal, the Social Security Administration's inspector general's office launched an investigation into Mr. Daugherty's approval rate, according to several people briefed on the matter. Mr. Daugherty said he isn't aware of any investigation.

ENLARGE

Judge Daugherty, left, an active member of the Huntington, W. Va., community, performed in a recent play.
Sholten Singer

Social Security, with an $800 billion annual budget, is one of the government's largest expenses, and is best known for sending monthly payments to retired Americans. But it also pays disability claims for 18 million people each year, with numbers pushed higher because of the recent recession. The federal government runs two separate programs to assist people unable to work because of a debilitating mental or physical disability.

For some, applying for benefits can be an agonizing process that takes more than two years. Benefits are modest—they can run around $1,000 a month—but come with access to government-run health plans Medicare and Medicaid. Analysts estimate the total package costs $300,000 over a beneficiary's lifetime.

To clear the backlog of cases, the Social Security Administration in 2008 pushed judges to move between 500 and 700 cases a year, something less than half of judges were managing at the time, according to Mr. Astrue, the commissioner. To compensate, judges began making many decisions "on the record," which means they grant benefits to applicants without meeting them, hearing testimony or asking questions, according to several judges. This has been a favorite approach for Mr. Daugherty, people who have worked with him say.

Mr. Daugherty doesn't dispute the characterization, and said in these circumstances he weighs "the evidence in the same manner as in cases requiring a hearing." He said the process "saves the agency a great deal of money and work hours."

The Social Security Administration "cares only about number of resolutions; quality is no longer a serious concern," James S. Bukes, a Pittsburgh administrative law judge, wrote in a recent letter to the House subcommittee that oversees Social Security. Mr. Bukes, who approved 46% of disability applicants through the first half of this fiscal year, said the system "wastes millions of dollars by granting claims that are not meritorious."

Mr. Daugherty became a Social Security judge in 1990 after serving as an elected Cabell County circuit court judge during he 1970s and 1980s. Born and raised in Huntington, he introduces himself as "D.B.," according to program notes for a recent local production of "Titanic: The Musical," in which Mr. Daugherty played John Jacob Astor. He's also a devotee of karaoke.

"He is a very, very well respected man in the community," said Nancy Cartmill, president of the Cabell County Commission. "He's been there for years."

In 2005, he reached 955 decisions, approving benefits in 90% of the cases. From 2006 through 2008, he decided 3,645 cases, approving benefits roughly 95% of the time. Last year, at 99.7%, he had one of the highest award rates in the country, and is on pace to award even more benefits in 2011, according to agency statistics.

As Mr. Daugherty's numbers rose, judges, staff and local attorneys began complaining about the volume of cases brought before the judge by one Kentucky lawyer.

The lawyer, Eric C. Conn, runs his Social Security practice out of a collection of connected mobile homes in Stanville, Ky., where he erected a giant statue of Abraham Lincoln in the parking lot. His smiling face adorns billboards up and down U.S. Highway 23, and his slogan is "he gets the job done." Mr. Conn hired Mr. Tinsley, the former Huntington judge, and promotes him on local billboards, too. Mr. Conn often brings an inflatable replica of himself to events. His website address is mrsocialsecurity.com.

Judges and staff in the Huntington office have complained to supervisors that Mr. Daugherty assigns himself Mr. Conn's cases, including some that were assigned to other judges, two former judges and several staff said. Cases are supposed to be assigned randomly.

According to a court schedule of Mr. Daugherty's day reviewed by The Wall Street Journal dated Feb. 22, 2006, Mr. Daugherty held 20 hearings spaced 15 minutes apart for Mr. Conn and his clients in a Prestonsburg, Ky., field office. Such days can be a bonanza for lawyers: The average fee for one approval is between $3,000 and $3,500 and can go as high as $6,000.

"The Conn situation was something we really harped on," said Jennifer Griffith, a master docket clerk in the office until she left in late 2007. "We made sure management knew about it. We gave them every chance to come up with some sort of logical explanation or to get it to stop, and that never happened."

Mr. Daugherty said he prefers a crammed timetable because he is dyslexic and must fit all of his hearings within four or five days each month because he "simply cannot spend that much time in the courtroom."

Holding hearings within just a few days "allows me sufficient time to review and prepare for hearings, resulting in full and complete knowledge of the documents in the case prior to hearing," he added.

Huntington's chief administrative judge, Charlie Andrus, said he was notified on four occasions of Mr. Daugherty either taking cases assigned to other judges or taking unassigned cases. Mr. Andrus said he issued a written directive on April 29 that "no case was to be reassigned between judges by anyone unless I gave specific permission."

Mr. Daugherty said he believed judges could take cases "so long as no other [administrative law judge] had seen or reviewed the file." He said he was "recently reminded that that is no longer true and I promptly returned the cases to the original assignees."

Stephen Sammons, 37, of Mavisdale, Va., said he injured his neck and back in a truck accident in 2001. He continued working until 2008 when the pain became unbearable, he said. He quit his job and filed for disability benefits.

Several doctors authorized by the Social Security Administration to look at his injuries disputed his claim that his condition was caused by the accident. He retained Mr. Conn, and the case ended up before Huntington judge Toby J. Buel Sr., who rejected the claim in February 2010.

Mr. Conn resubmitted Mr. Sammons' claim, and Mr. Sammons said he was surprised when Mr. Conn's office called and said he wouldn't have to appear before the judge and would only have to see a doctor, selected by Mr. Conn. The new medical records were filed to Mr. Daugherty, who approved the case without Mr. Sammons having to appear.

Mr. Daugherty declined to comment on the case.

A possible connection between Messrs. Daugherty and Conn is a subject of the inspector general's investigation, according to two people familiar with the probe. Neither Messrs. Conn or Daugherty have been accused of wrongdoing. Mr. Daugherty said he has "absolutely not" received anything of value from Mr. Conn or his associates for processing the lawyer's cases. He said he has denied a "goodly number" of Mr. Conn's cases over the years, though he couldn't provide a specific figure.

Mr. Conn declined multiple interview requests, and didn't respond specifically to written questions. In a statement, he said he had "not been contacted by any one indicating any investigation being conducted."

He added: "I have tried very hard in my 18 years of being a lawyer to represent my clients and the profession honestly and ethically seeking results based on the merits of my client's cases and the results that come from hard work and not from any improper conduct."

Some former judges and staff said one reason Mr. Daugherty was allowed to continue processing so many cases was because he single-handedly helped the office hit its monthly goals. Staff members can win bonuses and promotions if these goals are surpassed as part of performance reviews.

Dan Kemper, who began working as a judge in the Huntington office with Mr. Daugherty in 1990, said the Social Security agency's management refused to intervene because of the numbers Mr. Daugherty delivered for the office. He said he complained for years about the number of cases Mr. Daugherty approved without interviewing applicants. Mr. Kemper, who was known in the area as "Denying Dan" for his relatively strict approach, retired in 2007 because he felt the system was unfair.

"The only way you could really get that many cases out was to grant them all, because it was so much easier," Mr. Kemper said.

In late April, the Huntington office held 50 of Mr. Daugherty's cases—all approvals for Mr. Conn's clients—so they could be processed in May, because the office had already hit their monthly goal, people familiar with the matter said. Those applicants will have to wait an additional month to receive benefits. Mr. Conn, who receives a percentage of the back pay owed to his clients, will collect more fees because of the delay. The Huntington office will get a head start on the next month's target.

Mr. Daugherty said cases are held to space out his approvals, which he attributed to "the 'numbers game' that most, if not all, federal agencies are subject to."

Mr. Andrus said cases weren't held to meet monthly numbers. He said Mr. Daugherty's cases can be held because other applicants might have been waiting longer for benefits and those cases might take priority.

In a brief telephone interview in April, Mr. Daugherty blamed high poverty rates especially in Eastern Kentucky for his large case load and high approval rate.

"People would really be surprised at how little education those people have," he said. "If they have a fourth-grade education, they couldn't get a job if their lives depended on it."

I like Judge David B. Daugherty because he looks out for the little man. Social Security IS your money. YOU earned it and no one can take it away! It was Lyndon Johnson and the democratically controlled House and Senate who moved it to the budget to fully account for this money. Social Security(F.I.C.A.) taxes are paid only on the first $100,110.00 of income(wages) and billionaires and millionaires do not pay any additional taxes over that first $100,110.00. Every cent put into Social Security is still there along with the full backing of the US Government! The Congress over the years has borrowed from this fund with guaranteed interest and payments to the fund. Every cent is still there and that money has not been wasted or flagrantly invested. The Social Security Administration's authority to make benefit payments as granted by Congress extends only to its current revenues and existing Trust Fund balance, i.e., redemption of its holdings of Treasury securities. Therefore, Social Security's ability to make full payments once annual benefits exceed revenues depends in part on the federal government's ability to make good on the bonds that it has issued to the Social Security trust funds. As with any other federal obligation, the federal government's ability to repay Social Security is based on its power to tax and borrow and the commitment of Congress to meet its obligations.

"Social Security, with an $800 billion annual budget, is one of the government's largest expenses, and is best known for sending monthly payments to retired Americans. But it also pays disability claims for 18 million people each year, with numbers pushed higher because of the recent recession."

Despite program advancements, the Social Security system remains in headlines and changes continually. To ensure fair administration, I think we need continuous examination and refinement of the program. If anyone is in need of legal advice on Social Security Disability Benefits, I suggest visiting http://www.disabilitydenials.com. They also have free resources you can reference.

Since when is a fourth grade education grounds for awarding disability benefits? There are plenty of public spaces that need to be maintained, restaurants and offices to be cleaned, and who knows what where a completed education is not needed.

Let me tell you: I have personally witnessed a parent pushing a child into a SSD hearing in a wheelchair. The judge says to the lady,"what's the deal with the wheelchair? There is no notation of the child being unable to walk...?" Lady says, quote: " I caint get my kid on disability if he aint in a wheelchair, so now I be push him around in one..."

Well, the way I see it, if the probability of approval in a fair adjudication is the mean, .6, then the likelihood of "Judge" Daugherty somehow ending up with 1280 cases deserving approval of 1284 coming before him is 3.1 x 10 ** -275, which you may as well consider zero. For comparison, the number of atoms in the observable universe is estimated at about 1 x 10 ** 80, so the probability of Daugherty's approval rating being achieved by chance is less than one divided by three times the number of atoms in the observable universe.

I mention this to dismiss the inane arguments made by some that the approval rate should be higher in West Virginia than elsewhere, as if that would explain things. Even if the expected approval rate were 90%, the probability of getting a result like or more extreme than Daugherty's (1280 approvals of 1284 cases) would still be vanishingly small. But don't take my word for it, just compute it yourself. http://stattrek.com/Tables/Binomial.aspx

But seriously, folks, it is a well-known fact among those who know anything at all about this subject that SSDI is mainly an early retirement program for the lower middle class, with a few deserving recipients creeping in by accident. And it's easy to see why -- if you have a choice between working a lousy job for poor wages or going on the dole with free medical care, and sitting around in your West Virginia trailer getting drunk and eating lard all day, well, if you are a West Virginian, you choose the latter. There is no meaningful oversight to review the decisions of "Judges" like Daughety and the buffoons in Congress are not likely to implement any.

I've never met anyone actually committing fraud for welfare. It so debilitating to wade through the experience of proving your disability sufficiently to get help. I just can't imagine how someone would choose that and put up with it if they didn't need to. It's like getting a wheel chair when you can walk. With the caps already there on what help is available, one can't live above poverty anyway, so what's the deal with judging that level? That's like judging how many stitches were required to fix the wound. So my question is what are the right things for the tribe to invest in to contribute to the health, safety, and well being of it's people? What are the things that local systems can't handle? That's where the federal support comes in, I think, Like managing armies, building infrastructure, insuring that we have access to education and health care. Education - successful civilizations make sure all it's citizens have access. It's their survival. Evolution. This insures democracy. Health - basic right for survival of the tribe. Fending for those who can't fend for themselves is part of who we are. This is sacred and necessary for all of our well being.It's a gold mine for evolution as we learn about spirit, how we value ourselves, and the riches to be learned from our elders, children, disabled, and those suffering from illness. We are spending one million dollars per soldier a year in Afghanistan. The wealthy and oil companies get their subsidies and tax breaks. Yet, somehow, emotionally it's easier to target the weakest, the disabled, the students, and women's preventative healthcare. Seeing that population as the enemy to be surgically eliminated is a cheap shot, in my book. We are not the problem.

Every disability award regardless of the venue should be reviewed by outside auditors. Very expensive, true, but necessary to reestablish the credibility of the entire system. The system exists for the workers, not for bottom-feeding lawyers.

Make their tenures 5 years and rotate them to different parts of the country.

The country is broke because there is a racket of lawyers,doctors,paramedicals,judges,politicians,civil servants in every way which way possible, an outcome of ever expanding entitlement society where honest hardworking,tax paying citizens are being bled economically. Politicians have enacted myriad of vote bank laws without analysing the wherwithal to pay or revenue to back it up . SS,Medicare,medicaid,FDIC, Pension Quarantee Corp all or bust and kept going with borrowed money fom China,Japan and other ountries. We are on a worse path than Greece given our size & momentum.

This is what happens when a govt of the politicians by the politicians for the politicians evolves. We as a country are imploding.

If we lived in a civilized country where everyone received decent healthcare and a guaranteed decent minimum standard of living (i.e., France,Germany, Canada, anywhere in Scandinavia, BeNeLux, basically the rest of the developed world) none of this would happen.

Our system is so screwed up that many people are better off on disability, getting free healthcare, than they are working a low wage job.

If they are willing to work, we punish them by taking away their decent government healthcare and giving them whatever expensive, "swiss cheese" non-coverage healthcare policy their employer is offering.

When we learn to treat our fellow citizens like human beings instead of interchangeable parts in a machine, this sort of fraud will disappear.

It's a national embarrassment that people are forced to resort to fraud just to survive.

And if a judge has compassion, do we want a major, once respected national newspaper to smear him like he's some kind of criminal?

Is this really who we want to be? The most brutal society in the Western world outside Russia?

Great article. Tip of the iceberg. SSDI is well known among those who look to scam govt programs as the easiest. If our govt really cared, there would be massive follow-up, people would be fired and charges would be filed. But that's only if they really cared....

This judge is lazy. By not reviewing the merits of these cases he can avoid the work involved and he has eliminated the need to agonize over a decision he has to make. He can never be accused of not being consistent. He just treats every case the same making life easy for everyone involved, including himself. He avoids work, confrontation, decision making, and all other duties as a judge. What other job in American can you hold and completely avoid work, just do as you please, make good money, have lifetime guaranteed employment and have great benefits?

I am saddened by the article and reponses. Not fair and balanced reporting or crtiques. On the other end of the spectrum is Judge Showalter of Delaware . Sort the table by awards and you will see her on the last page. She denied my husband's disability appeal. The documents showed she had overlooked that some of the doctor's files were for a different person with a similar name. More than a few. Then she ignored the advice of the several doctors who stated my husband was not able to work. With his pain pump (mprphine), he gets partial relief but not anywhere near what would be needed to work. Believe me, there is another side of the SS system that is not working for the opposite reasons.

Its all fraud. Social Security Payouts are all cases of disability fraud - go to the SS office you will see 1 in 10 to be an actual over 65 year old that paid 20K a year for 40 years coming to get what is owed. Mostly its drug addicts and alcoholics gaming the system.

Here's a solution. Cap the dollar amount for SSDI. Then as more and more people are added just prorate the payments. Same thing with the healthcare benefit. Cap it on a $ basis and take the excess from the monthly payment. Pretty soon the incentive will be gone to go on SSDI.

The same Constitution that allows these judges to serve for a lifetime allows incompetent Supreme Court judges like Alito, Roberts, and Scalia to erode our rights as citizens (ie. Citizens vs. United) for a lifetime. All judges should be term limited. I'm sure the WSJ knows nothing about how Social Security works yet feels compelled to throw some red meat to its faithful "conservative" readers. LOL.

For those of you who commented that are not involved in and know nothing about the Social Security Disability regulations, Rulings, caselaw and procedures, I caution you to not allow yourselves to be duped by this article. It was written to do one thing - cause a visceral reaction by presenting biased information. On-the-record (OTR) decisions have been around a long time, and are an invaluable tool for approving claims at the hearing level that should have never been denied in the first place, or for which additional evidence has been presented that makes a hearing unnecessary. I noticed that Mr. Parilla did not address the "outlier" ALJs that deny almost every claim that they handle. There are many.

Read "Insolvency Looms as States Drain U.S. Disability Fund" - Article in March 22 Wall Street Journal. We had just returned from a cruise out of San Juan when I read this article. A husband and wife we met on the cruise were from Puerto Rico and both were on disability. She said she had carpal tunnel and pointed to all of her joints. He had some kind of work related stress. Nice work if you can get it.

Let me tell you: I have personally witnessed a parent pushing a child into a SSD hearing in a wheelchair. The judge says to the lady,"what's the deal with the wheelchair? There is no notation of the child being unable to walk...?" Lady says, quote: " I caint get my kid on disability if he aint in a wheelchair, so now I be push him around in one..."

Of course there is another. Side, I wish you good luck in your fight. We are just stating that there are many instances of dubious disability and welfare claims.

The fact that the entire process is so Subjective and loose and has no solid definition is the main problem with it. The previous poster, above states is a Dentist that is currently on SSI right now, and is typing very well written comments - do you mean to tell me that such an educated person with a clear mind is not able to find a job? As a babysitter or doorman or office admin.

I just wish the entire system were never created. And a private system that was sustainable like car insurance were created.

I have worked with Administrative Law Judges who found nearly everyone disabled, ones who found hardly anyone disabled, and some who had allowance rates in the middle of the road but who seemed to decide who was disabled and who was not by some random irrational process. The frustration of the unfairness and the difficulty of drafting decisions for these people and trying to dress them up to look like they make sense (putting lipstick on pigs) made me quite happy to retire as a Senior Attorney at the Social Security Administration.

And there will be little pity for you until begin shouting very loudly that the fraud needs to stop! I for one have been working hard to shut the whole SSI fraud program down. Welfare is available, that's what it is for.

Your situation may be one where you should have won, but the the overall rate shown in the scatter plot is well over 60 percent of appeals won. The scaltter, to even begiving the benefit of the doubt to borderline cases should be at or around 65% of appeals approved, not so skewed to approvals.

SS is messed up, but assumption of benefits is not the way to enter these hearings.

Your proposed model should be the basis of a Constitutional amendment making all entitlements contingent upon a fixed percentage of available tax revenues in any given year. Then let the eligible beneficiaries determine the allocations in a coop. This is the only responsible way for the government to administer safety-nets.

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